BVA9505566
DOCKET NO. 92-23 692 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to service connection for the cause of the veteran's
death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran served on active duty from July 1939 to April 1959.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in San Diego, California.
REMAND
The appellant contends that radiation and asbestos exposure while
serving on Navy ships in service caused her husband's death. She
contends that he may also have been exposed to ionizing radiation
while attending an X-ray Physics and Techniques school in service
in 1958. She argues that the veteran's lung cancer and lymphoma
were caused by these exposures, and her representative argues
that the veteran's cancers were due to exposure to asbestos and
his cigarette smoking during twenty years of service. In
addition, the appellant argues that the bouts of malaria with
which the veteran suffered in service weakened him and hastened
his death.
With respect to the radiation aspect of the appellant's claim, in
its June 1993 remand, the Board requested that the RO obtain all
available information form the service department that might be
helpful in assessing any occupational radiation exposure that the
veteran might have received during service, including information
pertaining to the X-ray Physics and Techniques course in 1958.
Thereafter, the RO was to forward the veteran's claims file to
the VA Chief Medical Director for preparation of a radiation dose
estimate for the veteran based on any occupational exposure in
service, including, but not limited to, any exposure he may have
received at his X-ray Physics and Techniques course in 1958. The
Board notes that the veteran's service personnel records confirm
that the veteran completed a course titled "X-ray Physics &
Technique, NavPers 10702," in December 1958. In response to the
remand, the RO requested available records of occupational
radiation exposure for the veteran from the Naval Dosimetry
Center, Naval Environmental Health Center Detachment and received
a September 1993 reply that there was no record of ionizing
radiation for the veteran in its data base. There is no
indication that the RO made any other effort to obtain
information that could be used to assess occupational radiation
exposure for the veteran, nor is there any indication that the RO
forwarded the veteran's claims file to the VA Chief Medical
Director for preparation of a radiation dose estimate as
requested and as is required under the provisions of 38 C.F.R.
§ 3.311(a)(2)(iii) (1994). Due process requires that a radiation
dose estimate be obtained from the Chief Medical Director.
Two cancers are involved in the appellant's claim, lung cancer
and lymphoma. Lung cancer is currently among the diseases listed
as potentially "radiogenic" in 38 C.F.R. § 3.311, while it has
been proposed that lymphomas other than Hodgkin's disease be
added to the list. See 59 Fed.Reg. 60576-77 (1994) (to be
codified at 38 C.F.R. § 3.311(b)(2)(xxii)). If the proposed rule
becomes final while the case is in remand status, the RO should
proceed under the revised regulation with any appropriate
development of that aspect of the appellant's claim involving
the veteran's lymphoma. If lymphoma is not added to the list of
potentially radiogenic diseases in 38 C.F.R. § 3.311, it should
be noted that in September 1994 the United States Court of
Appeals for the Federal Circuit determined that section 5 of the
Veterans' Dioxin and Radiation Exposure Compensation Standards
Act, Pub. L. No. 998-542, 98 Stat. 2725, 2727-29 (1984), did not
preclude, or authorize VA to preclude, a claimant from proving
that he or she has a disability as a result of exposure to
ionizing radiation in service under the provisions of 38 U.S.C.A.
§§ 1110, 1131 (West 1991) and 38 C.F.R. § 3.303(d) (1994),
despite that fact that the claimed disability is not a
potentially radiogenic disability under 38 C.F.R. § 3.311.
Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994), reversing in part
Combee v. Principi, 4 Vet.App. 78 (1993). In such cases, a
claimant must be given an opportunity to prove that exposure to
ionizing radiation during service actually caused the disability
or disabilities for which service connection is being claimed,
and that service connection is therefore warranted under 38
U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(d).
Accordingly, the case is REMANDED to the RO for the following
actions:
1. After all reasonable efforts have been
made to obtain all available information
from the service department which may be
helpful in assessing any occupational
radiation exposure that the veteran might
have received during service, including
information pertaining the X-ray Physics &
Technique Course, NavPers 10702, completed
by the veteran in December 1958, the RO
should forward the claims file to the VA
Chief Medical Director for preparation of
a radiation dose estimate for the veteran
based on any occupational exposure in
service, including, but not limited to,
any exposure he may have received at his
X-ray Physics & Technique Course in 1958.
2. Thereafter, the RO should proceed with
any additional development warranted under
38 C.F.R. § 3.311 with respect to the
veteran's lung cancer. Appropriate
development should also be undertaken with
respect to the veteran's lymphoma, if,
during the remand period, lymphoma is
added to the list of potentially
radiogenic diseases under 38 C.F.R.
§ 3.311.
3. The RO should also contact the
appellant and afford her the opportunity
to submit additional evidence and/or
argument in support of her radiation,
asbestos and cigarette smoking claims.
Thereafter, the RO should undertake any
indicated development.
4. Thereafter, in light of the evidence
obtained pursuant to the requested
development, the RO should readjudicate
the issue of entitlement to service
connection for the cause of the veteran's
death with consideration of Combee v.
Brown, 34 F.3d 1039 (Fed.Cir. 1994) as it
may relate to the radiation aspect of the
appellant's claim.
If the benefit sought on appeal is not granted to the appellant's
satisfaction, the RO should issue a Supplemental Statement of the
Case, and the appellant and her representative should be provided
an opportunity to respond. The case should then be returned to
the Board for further appellate consideration, if otherwise in
order. By this REMAND, the Board implies no conclusion, either
legal or factual, as to the final outcome warranted. No action
is required of the appellant until she is otherwise notified by
the RO.
ALBERT D. TUTERA
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).